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The Road Transport (Working Time) Regulations

STATUTORY INSTRUMENTS

 

2005 No. 639

 

TRANSPORT

 

The Road Transport (Working Time) Regulations 2005


Contents:

 

Introductory Text
1. Citation, commencement and extent
2. Interpretation
3. Application
3A. Duty to Review Regulation 3(1A)
4. Working time
5. The times of breaks, rests and periods of availability shall...
6. Periods of availability
7. Breaks
8. Rest periods
9. Night work
10. Information and records
11. An employer of a mobile worker shall
11A. A self-employed driver must— (a) keep records which are adequate...
12. A mobile worker shall, at the request of his employer...
13. (1) The Secretary of State shall arrange for the publication,...
14. Agency workers not otherwise mobile workers
15. Individual carrying on own trade or business
16. Enforcement
17. (1) Any person who fails to comply with any of...
18. Offences due to fault of other person
19. Offences by bodies corporate
20. Restriction on institution of proceedings in England and Wales
21. Prosecution by inspectors
22. Power of court to order cause of offence to be remedied
Signature
 
SCHEDULE 1
WORKFORCE AGREEMENTS
1. An agreement is a workforce agreement for the purposes of...
2. For the purposes of this Schedule— “a particular group” is...
3. The requirements concerning elections referred to in paragraph 2 are...
 
SCHEDULE 2
ENFORCEMENT
1. Appointment of inspectors
2. Powers of inspectors
3. Improvement notices
4. Prohibition notices
5. Provisions supplementary to paragraphs 3 and 4
6. Appeal against improvement or prohibition notice
7. Restrictions on disclosure of information
Explanatory Note

Introductory Text

 

Made: 10th March 2005

Laid before Parliament: 14th March 2005

Coming into force: 4th April 2005

The Secretary of State, being a Minister designated (1) for the purposes of section 2(2) of the European Communities Act 1972(2) in relation to measures relating to the organisation of working time, in exercise of the powers conferred upon him by that provision, hereby makes the following Regulations:

 

1. Citation, commencement and extent

 

(1) These Regulations may be cited as the Road Transport (Working Time) Regulations 2005 and shall come into force on 4th April 2005.

(2) These Regulations extend to Great Britain only.

 

2. Interpretation

 

In these Regulations -

“AETR” means the European agreement concerning the work of crews of vehicles engaged in international road transport(1) of 1st July 1970;

“collective agreement” means a collective agreement within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992(2), the trade union parties to which are independent trade unions within the meaning of section 5 of that Act;

“the Community Drivers' Hours Regulation” means Council Regulation (EEC) No.3820/85(3) of 20th December 1985 on the harmonisation of certain social legislation relating to road transport;

“employer” in relation to a worker, means the person by whom the worker is (or, where the employment has ceased, was) employed;

“employment” in relation to a worker, means employment under his contract, and “employed” shall be construed accordingly;

“goods” includes goods or burden of any description;

“goods vehicle” means a motor vehicle constructed or adapted for use for the carriage of goods, or a trailer so constructed or adapted;

“inspector” means a person appointed under paragraph 1 of Schedule 2;

“mobile worker” means any worker forming part of the travelling staff, including trainees and apprentices, who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account;

“night time” means in respect of goods vehicles the period between midnight and 4 a.m. and in respect of passenger vehicles the period between 1 a.m. and 5 a.m;

“motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads;

“night work” means any work performed during night time;

“passenger vehicle” means a motor vehicle which is constructed or adapted to carry more than eight seated passengers in addition to the driver;

“period of availability” means a period during which the mobile worker is not required to remain at his workstation, but is required to be available to answer any calls to start or resume driving or to carry out other work , including periods during which the mobile worker is accompanying a vehicle being transported by a ferry or by a train as well as periods of waiting at frontiers and those due to traffic prohibitions;

“reference period” means the period for calculation of the average maximum weekly working time;

“relevant requirements” means regulations 4(8), 7(5), 8(2), 9(4), 10, 11 and 12;

“self-employed driver” means anyone whose main occupation is to transport passengers or goods by road for hire or reward within the meaning of Community legislation under cover of a Community licence or any other professional authorisation to carry out such transport, who is entitled to work for himself and who is not tied to an employer by an employment contract or by any other type of working hierarchical relationship, who is free to organise the relevant working activities, whose income depends directly on the profits made and who has the freedom, individually or through a co-operation between self-employed drivers, to have commercial relations with several customers;

“vehicle” means a goods vehicle or a passenger vehicle;

“week” means a period of seven days beginning at midnight between Sunday and Monday;

“worker” means an individual who has entered into or works under (or, where employment has ceased, worked under)—

(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract;

and any reference to a worker’s contract shall be construed accordingly;

“workforce agreement” means an agreement between an employer and mobile workers employed by him or their representatives in respect of which the conditions set out in Schedule 1 to these Regulations are satisfied;

“working time” means the time from the beginning to the end of work during which the mobile worker is at his workstation, at the disposal of his employer and exercising his functions or activities, being

 

(a) time devoted to all road transport activities, including, in particular—

  • (i) driving;
  • (ii) loading and unloading;
  • (iii)assisting passengers boarding and disembarking from the vehicle;
  • (iv) cleaning and technical maintenance;
  • (v) all other work intended to ensure the safety of the vehicle, its cargo and passengers or to fulfil the legal or regulatory obligations directly linked to the specific transport operation under way, including monitoring of loading and unloading and dealing with administrative formalities with police, customs, immigration officers and others; or

(b) time during which the mobile worker cannot dispose freely of his time and is required to be at his workstation, ready to take up normal work, with certain tasks associated with being on duty, in particular during periods awaiting loading or unloading where their foreseeable duration is not known in advance, that is to say either before departure or just before the actual start of the period in question, or under collective agreements or workforce agreements;

“workstation” means

(a) the location of the main place of business of the undertaking for which the person performing mobile transport activities carries out duties, together with its various subsidiary places of business, regardless of whether they are located in the same place as its head office or its main place of business;

(b) the vehicle which the person performing mobile road transport activities uses when he carries out duties; or

(c) any other place in which activities connected with transport are carried out.

 

3. Application

 

(1) These Regulations apply to mobile workers who are employed by, or who do work for, undertakings established in a Member State of the European Union, and to whom paragraph (2) or paragraph (3) applies.

(2) This paragraph applies to mobile workers who in the course of that employment or work drive, or travel in, vehicles

  • (a) which fall within the meaning of ‘vehicles’ in Article 1 of the Community Drivers' Hours Regulation;
  • (b) which are not referred to in Article 4 of that Regulation; and
  • (c) in respect of which exemption from provisions of the Community Drivers' Hours Regulation has not been granted by regulation 2 of the Community Drivers' Hours and Recording Equipment (Exemptions and Supplementary Provisions) Regulations 1986(1).

 

(3) This paragraph applies to mobile workers, to whom paragraph (2) does not apply, who in the course of that employment or work drive, or travel in, vehicles

  • (a) which fall within the meaning of a “vehicle” in Article 1 of the AETR;
  • (b) which are not referred to in Article 2(2)(b) of the AETR; and
  • (c) which are performing international transport.

 

(4) These Regulations do not apply to—

  • (a) self-employed drivers, or
  • (b) any worker who does work which is included in the calculation of working time—
  •       (i)where the reference period is shorter than 26 weeks, on fewer than 11 days in a reference period applicable to that worker, or
  •       (ii)in any other case on fewer than 16 days in a reference period applicable to that worker.

 

4. Working time

 

(1) Subject to paragraph (2) below, the working time, including overtime, of a mobile worker shall not exceed 60 hours in a week.

(2) In any reference period which is applicable to his case, a mobile worker’s working time shall not exceed an average of 48 hours for each week.

(3) The reference periods which apply in the case of a mobile worker shall be—

  • (a) where a collective agreement or a workforce agreement provides for the application of this regulation in relation to successive periods of 17 weeks, each such period,
  • (b) in a case where—
  •       (i) there is no such provision, and
  •       (ii) the employer gives written notice to the mobile worker in writing that he intends to apply this subparagraph,

any period of 17 weeks in the course of the worker’s employment, or

  • (c) in any other case, the period ending at midnight between Sunday 31st July 2005 and Monday 1st August 2005 and thereafter, in each year, the successive periods beginning at midnight at the beginning of the Monday which falls on, or is the first Monday after, a date in column 1 below and ending at midnight at the beginning of the Monday which falls on, or is the first Monday after, the date on the same line in column 2 below.

 

Column 1 (beginning) Column 2 (end)
1st December 1st April
1st April 1st August
1st August 1st December

 

(4) The reference period may be extended in relation to particular mobile workers or groups of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or a workforce agreement, by the substitution for 17 weeks of a period not exceeding 26 weeks in the application of paragraphs (2) and (3)(a) above.

(5) A mobile worker’s average weekly working time during a reference period shall be determined according to the formula—

hours

 

where—

  •       A is the aggregate number of hours comprised in the mobile worker’s working time during the course of the reference period;

  •       B is the number of excluded hours during the reference period; and

  •       C is the number of weeks in the reference period.

 

(6) In paragraph (5), “excluded hours” means hours comprised in—

  • (a)any period of annual leave taken by the mobile worker in exercise of entitlement under regulation 13 of the Working Time Regulations 1998(1);
  • (b)any period of sick leave taken by the mobile worker;
  • (c)any period of maternity, paternity, adoption or parental leave taken by the mobile worker;

 

(7) For the purposes of paragraph (5), the number of hours in a whole day shall be eight and the number of hours in a whole week shall be forty-eight.

(8) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of the mobile worker, to ensure that the limits specified above are complied with in the case of each mobile worker employed by him.

 

5. Working time

 

The times of breaks, rests and periods of availability shall not be included in the calculation of working time.

 

6. Periods of availability

 

(1) A period shall not be treated as a period of availability unless the mobile worker knows before the start of the relevant period about that period of availability and its reasonably foreseeable duration.

(2) The time spent by a mobile worker, who is working as part of a team, travelling in, but not driving, a moving vehicle as part of that team shall be a period of availability for that mobile worker.

(3) Subject to paragraph (4) a period of availability shall not include a period of rest or a break.

(4) A period of availability may include a break taken by a mobile worker during waiting time or time which is not devoted to driving by the mobile worker and is spent in a moving vehicle, a ferry or a train.

 

7. Breaks

 

(1) No mobile worker shall work for more than six hours without a break.

(2) Where a mobile worker’s working time exceeds six hours but does not exceed nine hours, the worker shall be entitled to a break lasting at least 30 minutes and interrupting that time.

(3) Where a mobile worker’s working time exceeds nine hours, the worker shall be entitled to a break lasting at least 45 minutes and interrupting that period.

(4) Each break may be made up of separate periods of not less than 15 minutes each..

(5) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of the mobile worker, to ensure that the limits specified above are complied with in the case of each mobile worker employed by him.

 

8. Rest periods

 

(1) In the application of these Regulations, the provisions of the Community Drivers' Hours Regulation relating to daily and weekly rest shall apply to all mobile workers to whom they do not apply under that Regulation as they apply to other mobile workers under that Regulation.

(2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of the mobile worker, to ensure that those provisions are complied with in the case of each mobile worker employed by him, to whom they are applied by paragraph (1).

 

9. Night work

 

(1) The working time of a mobile worker, who performs night work in any period of 24 hours, shall not exceed 10 hours during that period.

(2) The period of 10 hours may be extended in relation to particular mobile workers or groups of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or a workforce agreement.

(3) Compensation for night work shall not be given to a mobile worker in any manner which is liable to endanger road safety.

(4) An employer shall take all reasonable steps in keeping with the need to protect the health and safety of mobile workers to ensure that the limit specified in paragraph (1), or extended in accordance with paragraph (2), is complied with in the case of each mobile worker employed by him.

 

10. Information and records

 

An employer of mobile workers shall notify each worker of the provisions of these Regulations and the provisions of any collective or workforce agreement which is capable of application to that worker

 

11. Information and records

 

An employer of a mobile worker shall

  • (a)request from each mobile worker details of any time worked by that worker for another employer;
  • (b)include time worked for another employer in the calculation of the mobile worker’s working time;
  • (c)keep records which are adequate to show whether the requirements of these Regulations are being complied with in the case of each mobile worker employed by him to whom they apply;
  • (d)retain such records for at least two years after the end of the period covered by those records;
  • (e)provide, at the request of a mobile worker, a copy of the record of hours worked by that worker;
  • (f)provide to an enforcement officer copies of such records relating to mobile workers as the officer may require;
  • (g)provide to a mobile worker or enforcement officer copies of such documentary evidence in the employer’s possession as may be requested by the worker or officer in relation to records provided to him in accordance with paragraph (e) or (f) above.

 

12. Information and records

 

A mobile worker shall, at the request of his employer under regulation 11(a), notify his employer in writing of time worked by the worker for another employer for inclusion in the calculation of the mobile worker’s working time.

 

13. Information and records

 

(1) The Secretary of State shall arrange for the publication, in such form and manner as he considers appropriate, of information and advice concerning the operation of these Regulations.

(2) The information and advice shall be such as appear to him best calculated to enable employers and workers affected by these Regulations to understand their respective rights and obligations.

 

14. Agency workers not otherwise mobile workers

 

(1) This regulation applies in any case where an individual (“the agency worker”)—

  • (a)is supplied by a person (“the agent”) to do the work of a mobile worker for another (“the principal”) under a contract or other arrangements made between the agent and the principal; but
  • (b)is not, as respects that work, a worker, because of the absence of a worker’s contract between the individual and the agent or the principal; and
  • (c)is not a party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer or any profession or business undertaking carried on by the individual.

 

(2) In a case where this regulation applies, the other provisions of these Regulations shall have effect as if there were a contract for the doing of the work by the agency worker made between the agency worker and —

  • (a)whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or
  • (b)if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work,
  • (c)and as if that person were the agency worker’s employer.

 

15. Individual carrying on trade or business

 

(1) This regulation applies in any case where an individual, who is not a self-employed driver, drives a vehicle described in regulation 3(1)(b) for the purpose of a trade or business carried on by him.

 

(2) Where this regulation applies—

  • (a)subject to paragraph (b), the other provisions of these Regulations shall have effect as if—
  •       (i)the individual were a mobile worker, and
  •       (ii)the individual were the employer of that mobile worker;
  • (b)regulations 10, 11(a) and (e) and 12 shall not have effect.

(3) This regulation shall not apply in any case where regulation 14 applies.

 

16. Enforcement

 

(1) It shall be the duty of the Secretary of State to enforce the requirements of these Regulations.

(2) Schedule 2 shall apply in relation to the enforcement of the relevant requirements.

 

17. Enforcement

 

(1) Any person who fails to comply with any of the relevant requirements shall be guilty of an offence.

(2) The provisions of paragraph (3) shall apply where an inspector is exercising or has exercised any power conferred by Schedule 2.

 

(3) It is an offence for a person —

  • (a)to contravene any requirement imposed by an inspector under paragraph 2 of Schedule 2;
  • (b)to prevent or attempt to prevent any other person from appearing before an inspector or from answering any question to which an inspector may by virtue of paragraph 2(2)(e) of Schedule 2 require an answer;
  • (c)to contravene any requirement or prohibition imposed by an improvement notice or a prohibition notice referred to in paragraphs 3 and 4 of Schedule 2 (including any such notice as is modified on appeal);
  • (d)intentionally to obstruct an inspector in the exercise or performance of his powers;
  • (e)to use or disclose any information in contravention of paragraph 7 of Schedule 2;
  • (f)to make a statement which he knows to be false or recklessly to make a statement which is false where the statement is made in purported compliance with a requirement to furnish any information imposed by or under these Regulations.

 

(4) Any person guilty of an offence under paragraph (1) shall be liable—

  • (a)on summary conviction, to a fine not exceeding the statutory maximum;
  • (b)on conviction on indictment, to a fine.

 

(5) A person guilty of an offence under paragraph (3)(b) or (d) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

 

(6) A person guilty of an offence under paragraph (3)(c) shall be liable—

  • (a)on summary conviction, to imprisonment for a term not exceeding three months, or a fine not exceeding the statutory maximum;
  • (b)on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine or both.

 

(7) A person guilty of an offence under paragraph (3)(a),(e) or (f) shall be liable—

  • (a)on summary conviction, to a fine not exceeding the statutory maximum;
  • (b)on conviction on indictment—
  •       (i)if the offence is under paragraph (3)(e), to imprisonment for a term not exceeding two years or a fine or both,
  •       (ii)if the offence is under paragraph (3)(a) or (f), to a fine.

 

(8) The provisions set out in regulations 18 to 22 shall apply in relation to the offences provided for in paragraphs (1) and (3).

 

18. Offences due to fault of other person

 

Where the commission by any person of an offence is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with the conviction of the offence by virtue of this regulation whether or not proceedings are taken against the first-mentioned person.

 

19. Offences by bodies corporate

 

(1) Where an offence committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, the preceding paragraph shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

 

20.  Restriction on institution of proceedings in England and Wales

 

Proceedings for an offence shall not be instituted in England or Wales except by an inspector or by, or with the consent of, the Director of Public Prosecutions.

 

21. Prosecution by inspectors

 

(1) If authorised in that behalf by the Secretary of State an inspector may prosecute proceedings for an offence before a magistrates court even though the inspector is not of counsel or a solicitor.

(2) This regulation shall not apply in Scotland.

 

22.Power of court to order cause of offence to be remedied

 

(1) This regulation applies where a person is convicted of an offence in respect of any matter which appears to the court to be a matter which it is in his power to remedy.

(2) In addition to or instead of imposing any punishment, the court may order the person in question to take such steps as may be specified in the order for remedying the said matters within such time as may be fixed by the order.

(3) The time fixed by an order under paragraph (2) may be extended or further extended by order of the court on an application made before the end of that time as originally fixed or as extended under this paragraph, as the case may be.

(4) Where a person is ordered under paragraph (2) to remedy any matters, that person shall not be liable under these Regulations in respect of that matter in so far as it continues during the time fixed by the order or any further time allowed under paragraph (3).

 

Signed by authority of the Secretary of State for Transport

 

David Jamieson

Parliamentary Under Secretary of State

 

10th March 2005


SCHEDULE 1

Regulation 2

 

WORKFORCE AGREEMENTS

 

1.  An agreement is a workforce agreement for the purposes of these Regulations if the following conditions are satisfied–

  • (a)the agreement is in writing;
  • (b)it has effect for a specified period not exceeding five years;
  • (c)it applies either—
  •       (i)to all of the relevant members of the workforce, or
  •       (ii)to all of the relevant members of the workforce who belong to a particular group;
  • (d)the agreement is signed -
  •       (i)in the case of an agreement of the kind referred to in sub-paragraph (c)(i), by the representatives of the workforce, and in the case of an agreement of the kind referred to in sub-paragraph (c)(ii), by the representatives of the group to which the agreement applies (excluding, in either case, any representative not a relevant member of the workforce on the date on which the agreement was first made available for signature), or
  •       (ii)if the employer employed 20 or fewer workers on the date referred to in sub-paragraph (d)(i), either by the appropriate representatives in accordance with that sub-paragraph or by the majority of the workers employed by him; and
  • (e)before the agreement was made available for signature, the employer provided all the workers to whom it was intended to apply on the date on which it came into effect with copies of the text of the agreement and such guidance as those employees might reasonably require in order to understand it in full.

 

2.  For the purposes of this Schedule—

  • “a particular group” is a group of the relevant members of a workforce who undertake a particular function, work at a particular workplace or belong to a particular department or unit within their employer’s business;

  • “relevant members of the workforce” are all of the workers employed by a particular employer, excluding any worker whose terms and conditions of employment are provided for, wholly or in part, in a collective agreement;

  • “representatives of the group” are workers duly elected to represent the members of a particular group;

  • “representatives of the workforce” are workers duly elected to represent the relevant members of the workforce;

  • and representatives are “duly elected” if the election at which they were elected satisfied the requirements of paragraph 3.

 

3.  The requirements concerning elections referred to in paragraph 2 are that—

  • (a)the number of representatives to be elected is determined by the employer;
  • (b)the candidates for election as representatives of the workforce are relevant members of the workforce, and candidates for election as representatives of the group are members of the group;
  • (c)no worker who is eligible to be a candidate is unreasonably excluded from standing for election;
  • (d)all the relevant members of the workforce are entitled to vote for representatives of the workforce, and all the members of a particular group are entitled to vote for representatives of the group;
  • (e)the workers entitled to vote may vote for as many candidates as there are representatives to be elected; and
  • (f)the election is conducted so as to secure that -
  •       (i)so far as is reasonably practicable, those voting do so in secret, and
  •       (ii)the votes given at the election are fairly and accurately counted.

SCHEDULE 2

Regulation 16(2)

 

ENFORCEMENT

 

1. Appointment of inspectors

(1) The Secretary of State may appoint as inspectors (under whatever title he may from time to time determine) such persons having suitable qualifications as he thinks necessary for carrying into effect these Regulations, and may terminate any appointment made under this paragraph.

(2) Every appointment of a person as an inspector under this paragraph shall be made by an instrument in writing specifying which of the powers conferred on inspectors by these Regulations are to be exercisable by the person appointed; and an inspector shall in right of his appointment under this paragraph be entitled to exercise only such of those powers as are so specified.

(3) So much of an inspector’s instrument of appointment as specifies the powers which he is entitled to exercise may be varied by the Secretary of State.

(4) An inspector shall, if so required when exercising or seeking to exercise any power conferred on him by these Regulations, produce his instrument of appointment or a duly authenticated copy thereof.

 

2. Powers of inspectors

(1) Subject to the provisions of paragraph 1 and this paragraph, an inspector may for the purpose of carrying into effect these Regulations exercise the powers set out in sub-paragraph (2).

 

(2) The powers of an inspector are the following, namely—

  • (a)at any reasonable time (or in a situation which in his opinion may be dangerous, at any time) to enter any premises which he has reason to believe it is necessary for him to enter for the purposes mentioned in sub-paragraph (1);
  • (b)to take with him a constable if he has reasonable cause to apprehend any serious obstruction in the execution of his duty;
  • (c)without prejudice to paragraph (b), on entering any premises by virtue of paragraph (a) to take with him—
  •       (i)any other person duly authorised by the Secretary of State; and
  •       (ii)any equipment or material required for any purpose for which the power of entry is being exercised;
  • (d)to make such examination and investigation as may in any circumstances be necessary for the purpose mentioned in sub-paragraph (1);
  • (e)to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (d) to answer (in the absence of persons other than a person nominated by him to be present and any persons whom the inspector may allow to be present) such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers;
  • (f)to require the production of, inspect, and take copies of, or of any entry in–
  •       (i)any records which by virtue of these Regulations are required to be kept, and
  •       (ii)any other books, records or documents which it is necessary for him to see for the purposes of any examination or investigation under paragraph (d);
  • (g)to require any person to afford him such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the inspector to exercise any of the powers conferred on him by this sub-paragraph;
  • (h)any other power which is necessary for the purpose mentioned in sub-paragraph (1).

 

(3) No answer given by a person in pursuance of a requirement imposed under sub-paragraph (2)(e) shall be admissible in evidence against that person or the husband or wife of that person in any proceedings.

(4) Nothing in this paragraph shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court or, as the case may be, an order for the production of documents in an action in the Court of Session.

 

3. Improvement notices

 

3.  If an inspector is of the opinion that a person—

  • (a)is contravening one or more of these Regulations; or
  • (b)has contravened one or more of these Regulations in circumstances that make it likely that the contravention will continue or be repeated,

he may serve on him a notice (in this Schedule referred to as “an improvement notice”) stating that he is of that opinion, specifying the provision or provisions as to which he is of that opinion, giving particulars of the reasons why he is of that opinion, and requiring that person to remedy the contravention or, as the case may be, the matter occasioning it within such period (ending not earlier than the period within which an appeal against the notice can be brought under paragraph (6)) as may be specified in the notice.

 

4. Prohibition notices

 

(1) This paragraph applies to any activities which are being, or are likely to be, carried on by or under the control of any person, being activities to or in relation to which any of these Regulations apply or will, if the activities are so carried on, apply.

(2) If as regards any activities to which this paragraph applies an inspector is of the opinion that, as carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Schedule referred to as “a prohibition notice”).

(3) A prohibition notice shall -

  • (a)state that the inspector is of the said opinion;
  • (b)specify the matters which in his opinion give or, as the case may be, will give rise to the said risk;
  • (c)where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of these Regulations, state that he is of that opinion, specify the regulation or regulations as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and
  • (d)direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) and any associated contraventions of provisions so specified in pursuance of paragraph (c) have been remedied.

 

(4) A direction contained in a prohibition notice in pursuance of sub-paragraph (3)(d) shall take effect—

  • (a)at the end of the period specified in the notice; or
  • (b)if the notice so declares, immediately.

 

5. Provisions supplementary to paragraphs 3 and 4

 

(1) In this paragraph “a notice” means an improvement notice or a prohibition notice.

(2) A notice may (but need not) include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates; and any such directions -

  • (a)may be framed to any extent by reference to any approved code of practice; and
  • (b)may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention or matter.

 

(3) Where an improvement notice or prohibition notice which is not to take immediate effect has been served -

  • (a)the notice may be withdrawn by an inspector at any time before the end of the period specified therein in pursuance of paragraph 3 or paragraph 4(4) as the case may be; and
  • (b)the period so specified may be extended or further extended by an inspector at any time when an appeal against the notice is not pending.

 

6. Appeal against improvement or prohibition notice

 

(1) In this paragraph “a notice” means an improvement or prohibition notice.

(2) A person on whom a notice is served may within 21 days from the date of its service appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.

(3) Where an appeal under this paragraph is brought against a notice within the period allowed under the preceding sub-paragraph, then -

  • (a)in the case of an improvement notice, the bringing of the appeal shall have the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal;
  • (b)in the case of a prohibition notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant the tribunal so directs (and then only from the giving of the direction).

 

(4) One or more assessors may be appointed for the purposes of any proceedings brought before an employment tribunal under this paragraph.

 

7. Restrictions on disclosure of information

(1) In this paragraph —

“relevant information” means information obtained by an inspector in pursuance of a requirement imposed under paragraph 2;

“relevant statutory provisions” means the provisions of Part 6 of the Transport Act 1968 and of any orders or regulations made under powers contained in that Part; and

“the recipient”, in relation to any relevant information, means the person by whom that information was so obtained or to whom that information was so furnished, as the case may be.

(2) Subject to the following sub-paragraph, no relevant information shall be disclosed without the consent of the person by whom it was furnished.

(3) The preceding sub-paragraph shall not apply to -

  • (a)disclosure of information to a government department;
  • (b)without prejudice to paragraph (a), disclosure by the recipient of information to any person for the purpose of any function conferred on the recipient by or under any of the relevant statutory provisions or under these Regulations;
  • (c)without prejudice to paragraph (a), disclosure by the recipient of information to—
  •       (i)an officer of a local authority who is authorised by that authority to receive it: or
  •       (ii)a constable authorised by a chief officer of police to receive it; or

(d)disclosure by the recipient of information in a form calculated to prevent it from being identified as relating to a particular person or case.

 

(4) A person to whom information is disclosed in pursuance of sub-paragraph (3) shall not use the information for a purpose other than -

  • (a)in a case falling within sub-paragraph (3)(a), a purpose of a government department or local authority in connection with these Regulations or with the relevant statutory provisions, or any enactment whatsoever relating to working time;
  • (b)in the case of information given to a constable, the purposes of the police in connection with these Regulations, the relevant statutory provisions or any enactment relating to working time.

 

(5) A person shall not disclose any information obtained by him as a result of the exercise of any power conferred by paragraph 2 (including in particular any information with respect to any trade secret obtained by him in any premises entered by him by virtue of any such power) except -

  • (a)for the purposes of his functions; or
  • (b)for the purposes of any legal proceedings; or
  • (c)with the relevant consent.

In this sub-paragraph “the relevant consent” means, in the case of information furnished in pursuance of a requirement imposed under paragraph 2, the consent of the person who furnished it, and, in any other case, the consent of a person having responsibilities in relation to the premises where the information was obtained.

 

(6) Notwithstanding anything in sub-paragraph (5) an inspector shall, in circumstances in which it is necessary to do so for the purpose of assisting in keeping persons (or the representatives of persons) adequately informed about matters affecting their health, safety and welfare or working time, give to such persons or their representatives the following descriptions of information, that is to say —

  • (a)factual information obtained by him as mentioned in that sub-paragraph which relates to their working environment; and
  • (b)information with respect to any action which he has taken or proposes to take in or in connection with the performance of his functions in relation to their working environment;

and, where an inspector does as aforesaid, he shall give the like information to the employer of the first-mentioned persons.

 

(7) Notwithstanding anything in sub-paragraph (5), a person who has obtained such information as is referred to in that sub-paragraph may furnish to a person who appears to him to be likely to be a party to any civil proceedings arising out of any accident, occurrence, situation or other matter, a written statement of the relevant facts observed by him in the course of exercising any of the powers referred to in that sub-paragraph.


 

EXPLANATORY NOTE

 

(This note is not part of the Regulations)

These Regulations implement the provisions of Council Directive 2002/15/EC concerning the organisation of the working time of persons performing mobile road transport activities.

The Regulations prescribe the maximum weekly working time and maximum average weekly working time of mobile workers who, in the course of their work, drive or travel in goods or passenger vehicles which are covered by the Community Drivers' Hours (Council Regulation (EEC) 3820/85) and they prescribe the reference periods over which such time is to be calculated .

They also regulate periods of availability, breaks, rest periods and night work.

They require employers to keep records of time worked and to provide copies.

They make it an offence to fail to comply with their requirements and provide for enforcement.

A Regulatory Impact Assessment has been produced and a copy placed in the library of both Houses of Parliament. Copies may be obtained from the Department for Transport, Great Minster House, 76 Marsham Street, London SW1P 4DR. Alternatively copies can be obtained from the Department’s website which is at www.dft.gov.uk

A transposition note has been prepared and copies may be obtained from the Department for Transport, 76 Marsham Street, London SW1P 4DR.


Introduction:

(1) S.I.1997/1174

(2) 1972 c. 68.

 

Interpretation:

(1) Cmnd 7401 and Cmnd 8572.

(2) 1992 c. 52.

(3) O.J. No.L370, 31.12.1985, p.1.

 

Application:

(1) S.I.1986/1456; the relevant amending instrument is S.I.1987/805.

 

Working time:

(1) S.I.1998; the relevant amending instrument is S.I. 2001/3256.

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